Kerry Foods Ltd v Lynch, EAT

Jumping the gun

Kerry Foods Limited v Lynch, EAT 20 May 2005

Lynch was employed as an area sales manager at the company where he worked a five-day week, excluding weekends, with 25 days holiday per year. By 2003 the company had adopted a six-day working week, which Lynch refused to accept. The company eventually wrote to him terminating his current contract on notice but offering him re-engagement on new terms of six days per week and fewer holidays per year. Before his notice period expired, Lynch resigned and claimed constructive dismissal.

The company argued the reason for his dismissal was ‘some other substantial reason’. The employment tribunal rejected this argument, finding that the company had failed to show adequate business reasons for the changes. The company successfully appealed.

The Employment Appeal Tribunal (EAT) said the tribunal had placed too high a burden upon the company. It had provided evidence of improved productivity for Saturday working and also its desire to avoid a two-tier system, thereby showing what advantages it expected from its change of policy. This was sufficient to demonstrate a potentially fair reason for dismissal in the form of ‘some other substantial reason’.

The EAT also found that there was no constructive dismissal as the changes were not in place when Lynch resigned and, since the giving of lawful notice in accordance with his contract cannot of itself constitute a breach of implied terms, there was no actual or anticipatory breach of contract.

Lynch had jumped too soon.

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